A guest post by Lawrence Friedman
In retrospect, the contretemps at summer’s end between the District Attorney’s office and a municipal court judge in Boston looks like a case study on the importance of effective accountability mechanisms in a judicial system. The dispute between prosecutors and Judge Richard Sinnott arose following the arrest of counter-demonstrators during the Boston Straight Pride Parade. Sinnott refused to accept an entry of nolle prosequi – the abandonment of a charge – in respect to certain defendants accused of disorderly conduct, on the ground that doing so would violate a Massachusetts statute that protects victims’ rights. The judge also ordered that a defense attorney arguing in favor of accepting the nolle prosequi be handcuffed and removed from the courtroom.
In addition to attracting a great deal of media attention, Judge Sinnott’s actions came in the wake of both a failed effort to amend the method of judicial selection in Massachusetts, and the release of the Boston Bar Association report, “Judicial Independence: Promoting Justice and Maintaining Democracy,” which defended the Commonwealth’s system of judicial selection through gubernatorial appointment with approval by the governor’s council. The responses to Sinnott’s denial of the Commonwealth’s entry of nolle prosequi and detention of a defendant’s lawyer illustrate ways in which real accountability is possible without abandoning judicial tenure. (Full disclosure: I was a member of the working group that drafted the Boston Bar Association report).
The Massachusetts legislature rejected a recent proposal to amend the constitution to provide that judges be reviewed every seven years, an initiative aimed at ensuring judicial accountability, according to one of the sponsors, for those judges who “make poor legal decisions.” The Boston Bar Association report, on the other hand, highlighted the existing mechanisms through which judges can be held accountable within the existing system. These mechanisms include the appellate process, an enforceable code of judicial conduct, and the promotion of transparency. Each of these mechanisms has worked in the case of Judge Sinnott.
As an initial matter, the Commonwealth immediately appealed Sinnott’s decision, as permitted under Massachusetts law, to a single justice of the Supreme Judicial Court. The single justice can grant emergency relief when the petitioner – in this case, the Commonwealth – establishes that, absent such review, substantial harm will result. Here, the single justice noted that a trial judge has no constitutional authority to reject the Commonwealth’s entry of a nolle prosequi: the executive enjoys broad and exclusive discretion to determine whether to prosecute a particular defendant.
Further, the single justice concluded that Sinnott erred in concluding that prosecutors had failed to comply with the provisions of the Massachusetts statute affording victims notice or an opportunity to confer with prosecutors prior to entering a nolle prosequi. Disorderly conduct, the single justice explained, “is an offense against the public and not against a specific victim,” which means there “were no specific ‘victims’ to notify” here. Regardless, no statutory mandate could overcome the constitutional authority of prosecutors to make charging decisions. Quoting the Supreme Judicial Court, the single justice observed that the district attorney “alone is answerable for the exercise of his [or her] discretion …. His [or her] action is final.”
Second, the Massachusetts Commission on Judicial Conduct initiated an investigation into Sinnott’s rejection of the nolle prosequi and the decision to order a defense lawyer taken into custody. The Commission’s statutory mandate is to “enforce standards of judicial conduct for Massachusetts state judges in a manner that, while respecting judicial independence, promotes public confidence in the judiciary and preserves the integrity of the judicial process.” In the course of its investigation, the Commission can hear from all sides in the matter and review the entire sequence of events before determining whether those actions amount to judicial misconduct.
Finally, thanks to media coverage, both Sinnott’s actions and the systemic responses were well publicized. As the Boston Bar Association report notes, “[b]ecause the ordinary citizen is not typically in a position to monitor the activities in courthouses and the performance of courts on a regular basis, members of the news media … play an essential role in making judicial proceedings accessible to the public and exposing to scrutiny practices that seem problematic or that are not well explained.” Here, the Commission acknowledged the media reports that spurred it to launch an investigation into Sinnott’s actions.
It is conceivable that the threat of periodic legislative review of individual judges could deter erroneous decisionmaking. But even that threat likely would not eliminate all, or even most, errors—and any reduction in errors would come at the cost of undermining judicial independence. The framers of the Massachusetts constitution envisioned a judiciary that would be removed from politics following the appointment process, the better to serve as a viable check on the political departments of government. That bargain naturally entails a commitment to meaningful judicial accountability—like the swift appellate review of Judge Sinnott’s rulings, and the subsequent investigation into his conduct on the bench. These systemic responses will serve to deter erroneous judicial decisions in like circumstances going forward—while continuing to insulate the Commonwealth’s judges from political reprisal for decisionmaking that in many instances may be more unpopular than erroneous.